What in the F**K is a Fundamental Right? Forum

[270910]

So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.

They don't really use "undue burdens" instead of strict scrutiny, they use the undue burdens test in analyzing whether the right has actually been infringed. If the law poses an undue burden on abortion, then it is subjected to strict scrutiny.

I think.

No thats wrong. If a state law imposes an undue burden on a woman's fundamental right to get an abortion pre-viability, it is unconstitutional under 14A. If a fed law does the same, it is unconstitutional through reverse incorporation of sub due process into 5A. The undue burden test replaces strict scrutiny only for abortions. As to whether a regulation is an "undue burden" is pretty subjective, just make args on both sides and look at what has been called an undue burden and what hasn't (e.g., provisions of Casey, Gonzales v. Carhart, etc.) and analogize/distinguish. Law exams aren't that deep as long as you have a technical mastery of the material.

Yup. Spot on.

[BobSacamano]

No thats wrong. If a state law imposes an undue burden on a woman's fundamental right to get an abortion pre-viability, it is unconstitutional under 14A. If a fed law does the same, it is unconstitutional through reverse incorporation of sub due process into 5A. The undue burden test replaces strict scrutiny only for abortions. As to whether a regulation is an "undue burden" is pretty subjective, just make args on both sides and look at what has been called an undue burden and what hasn't (e.g., provisions of Casey, Gonzales v. Carhart, etc.) and analogize/distinguish. Law exams aren't that deep as long as you have a technical mastery of the material.

Yup, you're right. I edited my post right after I posted.

Con law final, who needs it!

[dcpolitico]

To the original OP: A fundamental right is whatever the majority of the Court says is fundamental. I hope you realize that precedent and stare decisis are only tiny considerations at the Supreme level. This is not like Torts, Contracts, CivPro, etc... The Sup. Ct. is extremely political. Doctrines, rules, cannons of construction, and modes of interpretation are selectively applied (and tweaked) to obtain a particular result that conforms to the majority's ideology (think Bush v. Gore).

Equal marriage will become fundamental if Scalia is replaced by a liberal Justice during Obama's presidency.


To the prior poster, I'd be careful not to conflate the level of scrutiny (i.e. strict, intermediate, rational, or something else) with the a factual inquiry, like what's an "undue burden" (which I agree, is subjective). The undue burden test replaces Roe's trimester approach, not strict scrutiny.

[imchuckbass58]

Equal marriage will become fundamental if Scalia is replaced by a liberal Justice during Obama's presidency.

It might even if he is not. Kennedy is generally a centrist, but is pretty sympathetic to the liberal wing on equal protection and fundamental rights issues, especially as applied to gays/lesbians. Romer and Lawrence are two good examples.

[dcpolitico]

Equal marriage will become fundamental if Scalia is replaced by a liberal Justice during Obama's presidency.

It might even if he is not. Kennedy is generally a centrist, but is pretty sympathetic to the liberal wing on equal protection and fundamental rights issues, especially as applied to gays/lesbians. Romer and Lawrence are two good examples.

Agreed. I just dislike Scalia, and he seems to be the conservative ring leader up there. Romer is my favorite ConLaw case. "A state cannot so deem a class of persons a stranger to its laws," wrote Justice Anthony Kennedy in the majority opinion. In particular, he found, "the [Colorado] amendment imposes a special disability upon [homosexuals]," who are "forbidden the safeguards that others enjoy or may seek without restraint."

[mikeytwoshoes]

Equal marriage will become fundamental if Scalia is replaced by a liberal Justice during Obama's presidency.

It might even if he is not. Kennedy is generally a centrist, but is pretty sympathetic to the liberal wing on equal protection and fundamental rights issues, especially as applied to gays/lesbians. Romer and Lawrence are two good examples.

Agreed. I just dislike Scalia, and he seems to be the conservative ring leader up there. Romer is my favorite ConLaw case. "A state cannot so deem a class of persons a stranger to its laws," wrote Justice Anthony Kennedy in the majority opinion. In particular, he found, "the [Colorado] amendment imposes a special disability upon [homosexuals]," who are "forbidden the safeguards that others enjoy or may seek without restraint."

I have a feeling that Scalia will relinquish his robe when we pry it free from his cold dead fingers and not one goddamn second sooner.

[solidsnake]

To the prior poster, I'd be careful not to conflate the level of scrutiny (i.e. strict, intermediate, rational, or something else) with the a factual inquiry, like what's an "undue burden" (which I agree, is subjective). The undue burden test replaces Roe's trimester approach, not strict scrutiny.

Yes, undue burden is a factual inquiry but so is finding no less discriminatory alternatives, one of the elements in strict scrutiny. (and regardless, the factfinding at the Ct's level is no doubt motivated and colored by whatever policy and jurisprudential concerns are germane to the majority). But your last sentence is not accurate. The pre-viability / post-viability distinction is what replaces Roe's trimester approach. Casey "reaffirmed" the central holding of Roe and, unlike Roe, told us why abortion is included in the fundamental right of privacy in O'Connor's infamous "sweet mystery of life" passage and the various personhood arguments therein; but Casey also carved out an exception to the Skinner, Griswold, Eisenstadt, et al. modern substantive due process rule that when fundamental rights are infringed upon by the govt, they are subject to strict scrutiny standard of review -- Casey's holding is extremely narrow: When the govt imposes an undue burden on a woman's right to obtain an abortion pre-viability, it is unconstitutional. The undue burden test doesn't apply to other fundamental rights, only pre-viability elective abortions and pre- or post-viability therapeutic abortions, even if those other fundamental rights also fall within the scope of privacy. You saying "The undue burden test replaces Roe's trimester approach, not strict scrutiny" is such a misinterpretation, it's discomforting.

[dcpolitico]

Thanks for the correction. I took this last semester, and I admit, I should have refreshed my memory before replying. I should have said undue burden and strict scrutiny review are both relevant under Casey.

[Cupidity]

prefered fre...... *sleep*

[seespotrun]

So here is another question. In Casey, the court began using an "undue burden test" instead of "strict scrutiny." If you find a fundamental right, are you going to argue the strict scrutiny approach, even though the court really doesn't even mention it in Glucksberg? Is it gone? Frick... lol.

They don't really use "undue burdens" instead of strict scrutiny, they use the undue burdens test in analyzing whether the right has actually been infringed. If the law poses an undue burden on abortion, then it is subjected to strict scrutiny.

I think.

No thats wrong. If a state law imposes an undue burden on a woman's fundamental right to get an abortion pre-viability, it is unconstitutional under 14A. If a fed law does the same, it is unconstitutional through reverse incorporation of sub due process into 5A. The undue burden test replaces strict scrutiny only for abortions. As to whether a regulation is an "undue burden" is pretty subjective, just make args on both sides and look at what has been called an undue burden and what hasn't (e.g., provisions of Casey, Gonzales v. Carhart, etc.) and analogize/distinguish. Law exams aren't that deep as long as you have a [strike]technical mastery of the material[/strike] a good imagination.